Citation Nr: 0610306
Decision Date: 04/07/06 Archive Date: 04/13/06
DOCKET NO. 03-23 180A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased (compensable) rating for
rheumatic fever with cardiac arrythmia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. Vella Camilleri, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1946 to March
1947.
This matter is now before the Board of Veterans' Appeals
(Board) pursuant to a December 2002 rating decision by the
Montgomery, Alabama, Regional Office (RO) of the Department
of Veterans Affairs (VA). Appeal to the Board was perfected.
FINDING OF FACT
There is no competent medical evidence of record to establish
that the veteran suffers from residuals of rheumatic fever
with cardiac arrythmia.
CONCLUSION OF LAW
The criteria for a compensable disability evaluation for
service-connected rheumatic fever with cardiac arrythmia have
not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.88B, Diagnostic Code 6309 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part
4 (2005). Separate rating codes identify various
disabilities. 38 C.F.R. Part 4. In determining the current
level of impairment, the disability must be considered in the
context of the whole recorded history, including service
medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2005).
As this is not an appeal from the initial rating assigned,
however, the Board's focus is primarily on contemporaneous
evidence of the extent of the disability and the functional
limitations caused thereby. See Francisco v. Brown, 7 Vet.
App. 55 (1994).
Service connection for rheumatic fever with cardiac arrythmia
was granted with a noncompensable evaluation assigned under
Diagnostic Code 6309, effective March 11, 1947. See December
1948 rating decision. The veteran filed prior claims to
increase the rating, but was denied each time. See April
1966, December 1966, and July 1988 rating decisions. He was
also denied an increase by the Board in March 1967. The most
recently filed claim for an increased rating was made in
October 2002, and the veteran has appealed a December 2002 RO
rating decision that continued the noncompensable rating for
his service-connected rheumatic fever with cardiac arrythmia.
38 C.F.R. § 4.88B, Diagnostic Code 6309 (2005), provides a
100 percent rating for active rheumatic fever; thereafter,
residuals such as heart damage are rated under the
appropriate system. In this case, the original rating
decision was based solely on Diagnostic Code 6309 because
there were no residuals found. The veteran contends,
however, that his current heart condition (having suffered a
heart attack and undergoing triple bypass surgery) is due to
rheumatic fever with cardiac arrythmia. He indicates that he
is on beta blocker, and has been so for years, as well as
aspirin, which keep his heart from fluttering and waking him
up at night. See October 2002 and October 2005 statements in
support of claim.
The evidence of record includes an October 2002 VA history
and physical, which indicates that despite the long interval
since the veteran underwent a coronary artery bypass graft in
1979, he has had no recurrent ischemic episode since that
time. An exam of the veteran's heart revealed a regular rate
and rhythm with 2/6 systolic murmurs at the base as well as
at the apex, which appeared separate in quality and which may
represent aortic and mitral valve murmurs. There was no
apparent radiation of either murmur and there were no
gallops, rubs or clicks appreciated. The diagnostic
impression included (1) past history of coronary artery
disease, currently asymptomatic; and (2) long-standing
rheumatic heart disease.
The record also contains medical records from Dr. Lester.
These records indicate that the veteran was diagnosed with
arteriosclerotic heart disease in 2000. See June 2000 and
September 2000 medical records. Dr. Lester noted that since
the bypass surgery in 1979, the veteran has had some angina
but otherwise looks good; his interval history is otherwise
fine. See August 2002 medical record.
The veteran underwent a VA compensation and pension (C&P)
exam in December 2002. He denied shortness of breath,
wheezing and fatigability. The veteran reported occasional
tightness of his chest, which was relieved with nitroglycerin
as occasion required. He also indicated that he suffered
from palpitation if he skips his beta blocker medication.
After reviewing the claims file, the VA examiner diagnosed
the veteran with arteriosclerotic heart disease, rule out
rheumatic heart disease versus arteriosclerotic heart
disease, with intermittent atrial fibrillation versus
ventricular tachycardia.
The Board determined that a second exam was necessary to
determine whether the veteran suffers from rheumatic heart
disease and in order for certain tests and diagnostic studies
to be conducted. The examiner was also asked to opine as to
whether any rheumatic heart disease is related to the
rheumatic fever the veteran suffered while in service, and as
to whether the service-connected disability was causing any
of the current signs and symptoms the veteran experiences.
See September 2005 remand. The veteran requested that a
decision be made on the already-submitted evidence, as he had
no new medical evidence to submit and could not attend the
exam. See November 2005 statement in support of claim.
There is no competent medical evidence of record to suggest
that the veteran suffers from residuals of his service-
connected rheumatic fever with cardiac arrythmia. Although
the veteran was diagnosed with arteriosclerotic heart disease
by Dr. Lester and by a VA examiner, there is no medical
evidence that arteriosclerotic heart disease was caused by
rheumatic fever with cardiac arrythmia. Moreover, the
veteran was granted non-service connected pension with a
rating of 100 percent, effective, August 19, 1979, for
arteriosclerotic heart disease with history of myocardial
infarctions and three vessel bypass surgery. See December
1980 rating decision. The Board is sympathetic to the fact
that the veteran was unable to attend the VA C&P exam due to
his current condition, and acknowledges his contention that
his heart problems are directly attributable to his service-
connected rheumatic fever with cardiac arrythmia. The
veteran does not have the medical expertise, however, to
render competent his statements as to the relationship
between his current heart problems and the rheumatic fever he
suffered while in service. See Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). Without competent medical evidence
establishing a residual of rheumatic fever, the claim for a
compensable rating is not warranted.
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). In
accordance with 38 C.F.R. § 3.159(b)(1), proper notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; and (3) that the claimant is
expected to provide. Proper notice must also ask the
claimant to provide any evidence in his or her possession
that pertains to the claim. Notice should be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The veteran's appeal originates from a December 2002 rating
decision which continued a noncompensable disability
evaluation for service-connected rheumatic fever with cardiac
arrythmia. Prior to this decision, the veteran was advised
of the necessary evidence to substantiate the claim; that the
RO would assist him in obtaining additional information and
evidence; and of the responsibilities on both his part and
VA's in developing the claim. See November 2002 RO letter.
The veteran was later advised of the need to provide any
evidence in his possession that is pertinent to the claim.
See July 2003 Statement of the Case (SOC). As such, VA
fulfilled its notification duties. Quartuccio, 16 Vet. App.
at 187.
As the claim for increased rating involves a disability for
which service connection was granted decades ago, the Board
concludes that the veteran has not been prejudiced by VA's
failure to provide notice concerning the elements of a
service-connection claim, including notice concerning the
effective date. See Dingess v. Nicholson, No. 01-1917 (U.S.
Vet. App. March 3, 2006) (Hartman, No. 02-1506).
VA also has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2005). In this case, the veteran's
service, private and VA medical records have been associated
with the claims file, and the veteran was afforded an
appropriate VA examination in connection with his claim. In
addition, pursuant to the September 2005 remand instructions,
the RO attempted to schedule the veteran for a second VA
examination. The veteran was unable to attend the
examination due to his health and did not wish to reschedule.
He further informed the RO that he had no other medical
evidence to submit. See November 2005 statement in support
of claim.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
assistance is necessary, and deciding the appeal at this time
is not prejudicial to the veteran.
ORDER
A compensable disability evaluation for service-connected
rheumatic fever with cardiac arrythmia is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs